Water disconnections unconstitutional: Court

The High Court has upheld the people’s right to potable water by banning all municipalities from disconnecting supplies to their residents. In this file picture, residents of Rugare, Harare, fetch water from an unprotected well

Daniel Nemukuyu Senior Reporter THE High Court has stopped all municipalities countrywide from disconnecting water supplies for defaulting residents without seeking recourse to the courts of law.Justice Chinembiri Bhunu — in a landmark judgment availed on Wednesday — described as illegal Section 8 of the Water By-law Statutory Instrument 164 of 1913 which empowers local authorities to cut off water supplies arbitrarily in the absence of a court order.

He said the by-law was an illegal instrument drafted by municipal authorities contrary to the Constitution and the enabling statute. Section 8 of the Water by-law 164/1913 reads; “Council may, by giving 24 hours notice in writing and without prejudicing its right to obtain payment for water supply to its consumer, disconnect supplies to the consumer:

“(a) If he shall have failed to pay any sum, which in the opinion of the council, is due under these conditions or the water by-laws.” Justice Bhunu said the tendency of disconnecting water supplies without the blessing of the courts was tantamount to self-help by municipalities and a disregard of the Constitution of Zimbabwe.

Prior to the judgment, legal experts had been speaking against council’s strategy of compelling consumers to pay saying it was illegal but Justice Bhunu spelt it out in a case in which Harare lawyer Mr Farai Mushoriwa was contesting disconnection of water at his flat in Harare.

Mr Mushoriwa of Mawere and Sibanda law firm in Harare had water disconnected from his flat at No. 12 Northcliffe over a debt of US$1 600.

He denies owing council anything, but council rushed to disconnect water at the flat.

Advocate Thabani Mpofu represented Mr Mushoriwa in the case while Mr Charles Kwaramba of Mbidzo Muchadehama and Makoni acted for Harare City Council.

Justice Bhunu said Section 8 of the Water By-Laws (Statutory Instrument 164/1913) that is being relied upon by the municipalities in disconnecting water without seeking recourse from the courts, was in breach of Section 77 of the Constitution of Zimbabwe, which classifies clean water and food as basic rights.

“The respondent has sought to arrogate to itself the right to determine when the amount claimed is due by simply laying a claim to payment without proof by due process or recourse to the courts of law.

“That it (council) seeks to do is to oust the jurisdiction of the courts so that it can operate as a loose cannon and a law unto itself. “It seeks to extort money from the applicant (consumers) without the bother of establishing its claim through recognised judicial process.

“The disconnection of water supplies without recourse to the courts of law is meant to arm-twist and beat the applicant (consumer) into submission without bother of proving its claim in a court of law,” said Justice Bhunu.

The judge said Section 77 of the Constitution guarantees the right to safe and clean water while Section 44 of the same Constitution imposes a duty on the State and Government institutions like council to respect the fundamental human rights and freedoms.

“The respondent (council) being a public body, and institution of local government, it follows that it cannot deny a citizen water without just cause.

“It is trite that it is the function of the judiciary to interpret and enforce the law when a citizen complains that his human rights have been violated,” ruled Justice Bhunu.

Justice Bhunu expressed displeasure over Harare City Council’s conduct to go ahead and disconnect water supplies despite an earlier consent order by the parties for the restoration of water to Mr Mushoriwa pending determination of the application.

“The respondent’s conduct in terminating water supply in the face of a binding court order was contemptuous of the court and unbecoming of the respondent and its officials.

“The court expresses its displeasure by awarding costs at a punitive scale,” ruled the judge.

Local authorities countrywide have been using water disconnections to force residents to pay up overdue bills, resulting in people living in life threatening conditions.

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Makorokoto vaMushoriwa you stood up for all of us against unjust colonial tendencies by local authorities. 1913 piece of law? What are chamber secretaries doing? Kwasara nyaya dzeku clampa motor, I don’t think it’s constitutional.

Tinashe

Saka nhai VaBhnu who will pay for the supply of water to residence . This decision will in the long run make sure that residence will not have access to clean water which you claim is their right. Zvana Bhunu vekuti macouncils ndee MDC so they must be denied access to revenue will backfire over time. Already titori necrisis ye inadequate supply of water due to lack lack of funding for water projects. Now if residence stop paying as they will surely do in the absence of disconnections how will the supply of water be funded.

robzam

The idea is not for residence to stop paying but it’s having recourse to the arbitrary huge estimated bills. I have got a grandmother who lives in one of these old townships, they can go for a month without water but she still gets a huge estimated bill. Complaints to the council land on deaf ears. It is against this background that the council has been stopped from victimising residence to pay for services never rendered.

Mamtuoewp

Mushoriwa is a hero!

hondo

Was it that council wanted to reap where it didnot sore.then if this guys arecsating no to water disconnections then how is council going to find the purchase of chemicals and maintanace of equipment later alone pay for zesa bills. What it only mean is that noone will pay given the level of unemployment in the country worse is to come. ICHANGO POBWA YAKADARA ISINA MUSHONGA OR NOT TO HAVE IT A ALL, people will be happy in the short tem but it is short lived.

ko ndikwo kunonzi kuponda nyika kwacho.

Simbisai

Very difficult situation all around. Municipalities can’t afford to provide water resources requiring purifying chemicals, working pumps, repairs to underground pipes etc without regular payments, and unemployed residents without regular jobs and frequent non existent safe water supplies, can’t afford to pay imaginary estimated bills used almost exclusively to cover municipality wages and astronomical perks to corrupt management. Knowing the major part of debts outstanding are owed by Ministries, Parastatals and the wealthy politically well connected, why concentrate on targeting the Povo?

jojo

The learned one here is not saying that defaulters must not pay.he said local authorities must seek recourse from courts,a norm that is used in most civilised countries ,instead of just cutting out an essential commodity .its barbaric and outdated way of treating citizens.do you seriously think that the erratic supply of “dirty “water is being caused by defaulters? There is more to it than that.

Kule

I last month recieved a $79 USD just for water i live in Mabvuku last have water in January council have failed to explain and justify until now the money is appearing on my bill these are injustices.Councils have been extorting money from residents through chaotic and opaque billing.Nhasi zvaiwana ngwarati.The Courts will deal with these issues this will expose the council billing.WATER IS A HUMAN RIGHT

Jotham

I wish to thank the constitution and the judgement that was handed down – these local authorities were acting like misguided missiles.